VANCOUVER - B.C. Attorney-General Shirley Bond quickly squelched any notion that drinking motorists will get a break because part of the province’s tough new impaired-driving regime has been declared unconstitutional.

Within hours of the B.C. Supreme Court ruling Wednesday, Bond emphasized that it substantially upheld the controversial year-old program imposing the harshest non-criminal punishments in the country.

Justice Jon Sigurdson said sections of the Motor Vehicle Act trample on the rights of drivers who blow over .08 on a roadside-screening device because the law does not provide a proper appeal process and relies on what amounts to an illegal search-and-seizure.

Drivers who ask for a review are prohibited from questioning the reliability of the screening device and their grounds of appeal are severely restricted, the justice said, so the charter breach can’t be sanctioned given the heavy penalties they face.

“This is particularly so considering the province has legislated to base the consequences of a ‘fail’ reading entirely on the results of the screening device.”

In a lengthy decision released the same day the holiday Counterattack program began, the veteran jurist said:

“Although I am fully satisfied of the importance of the objective of reducing the harms caused by impaired driving, I have found that the [constitutional] challenge succeeds in part, because in one respect the impugned legislation infringes the rights of individuals to be free from unreasonable search and seizure.”

Bond responded that the government will rewrite the law and introduce amendments this spring.

In the meantime, she said police will return to the old, still-on-the-books process for those who blow over .08 or proceed under the Criminal Code, which is unaffected by the decision.

Under that process, a motorist who blows a “fail” on an approved screening device is read their rights, given a chance to call counsel and then tested twice on a breathalyzer by a technician whose work can later be examined and the reliability of the machine vetted.

“[The ruling] does not mean that if you decide to drink and drive and blow .08 or above you will not face consequences,” Bond insisted. “There will continue to be strong penalties in place.”

After deliberating for six months, Justice Sigurdson said Wednesday that given the stiff penalty for a “fail” under the new administrative program, he thought there needed to be a better, less limited appeal process.

He concluded: “The [Administrative Roadside Prohibition] legislation infringes section 8 of the Charter [of Rights and Freedoms] insofar as it concerns the prohibition, penalty and costs arising from the screening device registering a ‘fail’ reading over 0.08. This infringement is not a reasonable limit which is demonstrably justified in a free and democratic society.”

Lawyer Howard Mickelson, who participated in the case, said he thought the frailties of the law articulated in the decision would make the province’s job of trying to salvage it much more difficult than the attorney-general suggested.

He said the province’s planned response and the judge’s final order in the case will all be discussed at the imminent hearing. No date has been set for it.

Robert Holmes of the B.C. Civil Liberties Association said: “Thank goodness we have an independent judiciary that isn’t afraid to stand up to government when it goes too far.”

The most draconian impaired driving regime in the country allows police to issue immediate roadside suspensions, impound cars and levy fines on drivers who refuse a breath test or blow a blood-alcohol level of .05 or higher.

It costs drivers who cross the .08 “fail” threshold a three-month suspension and nearly $5,000 in penalties, towing bills, stowage fees and other costs — they are forced to complete a pricey safe-driving program and install interlock ignition devices on any motorized vehicle they operate.

Defence lawyers savaged the law for infringing rights while the hospitality industry complained it scared away customers.

The Alliance of Beverage Licensees of British Columbia said it would have been happier if Justice Sigurdson entirely denounced the legislation.

“We have believed from day one that this law is unfair and conceptually flawed, and our businesses have suffered as a result,” said president Matt MacNeil.

The new rules “amounted to a scare tactic that kept people from being able to even enjoy one drink after work or with dinner,” he added.

“We’re pleased that the Supreme Court has agreed that provisions of this law are unconstitutional, and we look forward to working with the B.C. government to come up with better solutions to stop impaired driving.”

Gordon Cartwright, owner of Woody’s on Brunette Pub in Coquitlam, also welcomed the ruling because his business dropped by 20 per cent.

“It’s a great Christmas present for the people of B.C. who want to drive responsibly and want to enjoy a few cocktails with their friends,” said Cartwright.

“We had some very aggressive policemen who were just sitting outside in the parking lot and pulling people over when they left. People were just scared to even drive out of the parking lot here.”

While not binding outside B.C., the decision will prod other provinces such as Alberta, which last week introduced similar legislation, to review plans to emulate B.C.’s approach to avoid similar problems.

Justice Sigurdson embarked on a constitutional examination of the law as a result of issues raised by a representative group of drivers who were subjected to the most severe penalties of the law that came into effect in September 2010.

Laurel Middelaer, whose four-year-old daughter Alexis Middelaer was killed by a driver who had been drinking, said it was reassuring that the law is being reassessed.

“These laws will be tested and ultimately the goal is safety,” she said.

“When you have consequences that are timely and meaningful it does deter [people].”

The government claims its program has been a huge success, reducing alcohol-related fatalities during the last year to 68 — a 40-per-cent decline from five-year annual average of 113 deaths.

Also during that year, police issued 23,366 suspensions. Of those, 15,401 were drivers who blew a “fail” or refused to provide a breath sample; and 7,965 blew a “warn.” Police also impounded 20,020 cars — roughly 14,900 for 30 days. The rest were three-day impoundments.

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